The Occupational Safety and Health Act 1994 (“OSHA 1994”) is the primary legislation which governs the safety, health and welfare of persons at work against risks to safety or health arising out of the activities of persons at work in Malaysia. On 27.10.2021, the Dewan Rakyat passed the Occupational Safety and Health Bill 2020 (“OSHB”), where several key amendments were tabled. However, these amendments only recently came into force on 1.6.2024 following the enactment of the Occupational Safety And Health (Amendment) Act 2022 (“OSHAA 2022”).
Key Amendments to OSHA 1994
The amended OSHA 1994 provides enhanced protection for the occupational safety and health of workers in Malaysia. Some of the key amendments include the following:
Extension of Applicability of OSHA 1994
Prior to OSHAA 2022 coming into force, by virtue of Section 1 and the First Schedule of OSHA 1994, the application of OSHA 1994 was limited to the following industries:
- Manufacturing
- Mining and quarrying
- Construction
- Agriculture, forestry and fishing
- Utilities, i.e electricity, gas, water and sanitary services
- Transport, storage and communication
- Wholesale and retail trades
- Hotels and restaurants
- Finance, insurance, real estate and business services; and
- Public services and statutory authorities
Post-amendments, OSHA 1994 now applies to all places of work, including public services and statutory authorities in Malaysia, except the following:
- Domestic employment in relation to a person who employs another, or is employed, as a domestic servant within the meaning of the Employment Act 1955;
- Armed forces; and
- Work on board ships governed by the Merchant Shipping Ordinance 1952 [Ord. No. 70 of 1952], the Sabah Merchant Shipping Ordinance 1960 [Ord. No. 11 of 1960] or the Sarawak Merchant Shipping Ordinance 1960 [Ord. No. 2 of 1960].
New Duties on Principal, Employer and Self-employed Person
Under OSHA 1994, “principal”, “employer” and “self-employed person” are respectively defined as follows:
- “principal” means any person who in the course of or for the purposes of his trade, business, profession or undertaking contracts with a contractor for the execution by or under the contractor of the whole or any part of any work undertaken by the principal;
- “employer” means any person who has entered into a contract of service to employ any other person as an employee; and
- “self-employed person” means an individual who works for gain or reward otherwise than under a contract of service, whether or not he himself employs others.
Post-amendment, the following duties are placed on principals, employers and self-employed persons:
- Section 18A of OSHA 1994 provides that principals are now required to take practicable measures to ensure the safety and health of all involved parties; and
- Section 18B of OSHA 1994 provides that every employer, self-employed person or principal shall conduct a risk assessment in relation to the safety and health risk posed to any person who may be affected by his undertaking at the place of work.
Appointment of Occupational Safety and Health Coordinator
Section 29A(1) of OSHA 1994 mandates that an employer whose place of work does not require a Safety and Health Officer [under Section 29(1) of OSHA 1994] now requires the employer to appoint one of its employees as an Occupational Safety and Health Coordinator if he employs five or more employees at the place of work.
In the event an employer fails to comply with Section 29A(1) of OSHA 1994, the employer shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding six months or to both.
Employees’ right to ‘remove’ themselves from ‘imminent danger’ at the workplace
Section 26A of OSHA 1994 (as amended by OSHAA 2022) provides that if an employee has a justifiable suspicion of imminent danger in the workplace, the employee has the right to remove themselves from this danger in the workplace if they have:
- Informed their employer; and
- The employer fails to take any action to remove the danger.
Imminent danger is defined as a serious risk of death or serious bodily injury to any person that is caused by any plant, substance, condition, activity, process, practice, procedure or place of work hazard.
Any employee who exercises their right under this provision shall not be discriminated against and will be protected from any undue consequence by their employer.
This amendment offers employees a more comprehensive protection framework, granting them the right to take proactive measures to ensure their health and safety at work, which were not explicitly provided for pre-amendment.
Increased penalties and punishments for employers, self-employed persons, principals, and manufacturers
Section 49 of OSHA 1994 (as amended by OSHAA 2022) has increased the penalties on employers, self-employed persons, principals, and manufacturers who fail to comply with an improvement or a prohibition notice issued under Section 48 of OSHA 1994 as follows:
- From a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding five years or to both, and to a further fine of five hundred ringgit for each day during which the offence continues;
- To a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both, and a further fine of two thousand ringgit for each day during which the offence continues.
An improvement notice is issued when an officer is of the opinion that a place of work, plant, substance or process is likely to be a danger, or is likely to cause bodily injury or is a serious risk to the health of any person, or is likely to cause damage to any property, whereas a prohibition notice is issued when an officer is of the opinion that the defect in subsection (1) is likely to cause immediate danger to life or property.
An “officer” is defined as the officer appointed under subsection 5(1) or (3) of OSHA 1994 (as amended by OSHAA 2022).
Directors and Office Bearers Jointly and Severally Liable
Directors and other office bearers may now be jointly or severally liable for offences committed by the company or other relevant body.
Section 52 of OSHA 1994 (as amended by OSHAA 2022) has been amended to provide that a person who, at the time of the commission of an offence by a company, was (or was acting as) a director, compliance officer, partner, manager, secretary or other similar officer of the company, or was in any manner responsible for the management or assisting in the management of the affairs of the company, may be jointly or severally liable for offences committed by the company.
Such liability may be exempted in the event the person is able to prove:
- That the offence was committed without his knowledge; and
- Without his consent or connivance, he had taken all reasonable precautions and exercised due diligence to prevent the commission of the offence.
Conclusion
OSHA 1994 (as amended by OSHAA 2022) now protects a much larger category of employees in Malaysia. Employers are urged to take the necessary steps to comply with OSHA 1994 and the Revised First Schedule. During this process, employers should also remain vigilant while reviewing policies or revising terms of employment contracts, which may have set out clauses that are contrary to the amended OSHA 1994.
Please contact us should you require our services and advice on your company’s compliance with the amended OSHA 1994.
By Naveen Joshua and Kirthika Padmanapan
Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.
